ST. GEORGE – A U.S. Court of Appeals last week observed that it is ultimately the people’s rights that suffer when one branch encroaches on another. Such was the conflict brought before it in the D.C. Circuit when the National Labor Relations Board upheld a collective bargaining agreement involving Noel Canning, a bottler and distributor of Pepsi-cola products.
The problem wasn’t with the bargaining agreement, which the Court of Appeal affirmed was reached, but with the order of enforcement. In short, the respondent NLRB, which issued an order enforcing the agreement with the union, included three Obama appointees who received their appointments to the Board without Senate advice or consent during a period that President Obama claimed was a qualifying recess under the Recess Appointment Clause of the Constitution.
The Court of Appeals saw differently, invalidating the three from seats on the board. And without the three on the board, there was no quorum and with no quorum there was no valid enforcement order.
The court’s analysis and holdings on the Constitutional clauses speak to greater matters than just whether a distributor of soda pop is bound to a union bargaining agreement, the effects of the rulings and reactions to them promise to be plenty and far-reaching.
Breakdown of key issues in the case
On Jan. 4, 2012, Obama appointed three members to the NLRB, for seats previously vacated, implementing the Recess Appointments Clause of the Constitution, which is an exception to the Appointments Clause of the Constitution.
At the time of the appointments in question, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The Court held that this was not a recess for purposes of implementation of the Recess Appointments Clause, it was rather an intrasession period, not an intersession period to which the Recess Appointments Clause applies.
The Appointments Clause both obliges and empowers the president to appoint officers of the United States “by and with the Advice and Consent of the Senate.”
The Recess Appointments Clause empowers the president to “fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
The court in this case undertook to define terms, “the recess” and “happen,” both of which serve to prescribe the limits of the executive authority to make appointments without Senatorial advice and consent.
The potentially far-reaching holdings
The Appellate Court held that “the Recess” characterized by the Framers was specific to an intersession Senate recess and not just any adjournment of the Senate; it noted that otherwise, for example, the Senate’s adjournment for lunch could be construed a recess and provide undue opportunity to the president.
It also held that “happen” characterized by the Framers was intended to mean a vacancy that arises during the recess and not to just any vacancy that “happens to exist” during the recess; it noted that otherwise, for example, a president could wait out an existing vacancy until a recess occurred allowing executive appointment and then appoint at will without the counter-balance of Senatorial advise and consent.
On these analyses and holdings, the Noel Canning case failed to meet the Constitutional empowerment and Obama’s appointments were therefore found to be invalid.
According to dicta in the decision, “Whatever the precise number of putative intrasession recess appointments before 1947, it is well established that for at least 80 years after the ratification of the Constitution, no President attempted such an appointment, and for decades thereafter, such appointments were exceedingly rare.”
Purpose of the Appointments Clauses
The court in Noel Canning summed up the purpose of the interpreted clauses:
“The Senate’s desires do not determine the Constitution’s meaning. The Constitution’s separation of powers features, of which the Appointments Clause is one, do not simply protect one branch from another. (Citations omitted.) These structural provisions serve to protect the people, for it is ultimately the people’s rights that suffer when one branch encroaches on another.”
Reaction from the White House
In a White House press conference on Friday, White House Press Secretary Jay Carney said that the ruling was specific to the case itself and does not affect Richard Cordray, head of the Consumer Financial Protection Bureau (also appointed by Obama in January 2012, as were the three now debunked NRLB board members) and does not affect the functions of the NLRB. Carney said that the Administration strongly disagrees with the decision and that it counters 150 years of precedent.
But the court’s decision plainly disagrees with the press secretary’s characterization of the ruling as an isolated case with specific application, and it contains history of the rare implementation of the Recess Appointments Clause.
On the general and nonspecific holding intended by the court, it stated in its decision:
“In light of the extensive evidence that the original public meaning of ‘happen’ was ‘arise,’ we hold that the President may only make recess appointments to fill vacancies that arise during the recess.”
In the very next paragraph, the court applied its holding to the specific case of Noel Canning: “Applying this rule to the case before us, we further hold that the relevant vacancies did not arise during the intersession recess of the Senate ….”
Holding first, application second; the court articulated the scope of its decision in its opening:
“At its inception, this appears to be a routine review of a decision … over which we have jurisdiction. … While the posture of the petition is routine, as it developed, our review is not. In its brief before us, Noel Canning … questions the authority of the Board to issue the order on two constitutional grounds. … if petitioner is correct in either of these assertions, then the order under review is void.” (Emphasis added.)
The court also defined its purpose:
“… ultimately it is our role to discern the authoritative meaning of the supreme law. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court made clear that the courts must make the same determination if the executive has acted contrary to the Constitution. (Citation omitted) That is the case here, and we must strike down the unconstitutional act.”
Reaction from Utah Senators
Both of Utah’s senators expressed pleasure with the decision.
Hatch spearheaded a letter in December 2011, signed by every Senate Republican, which called on Obama to not recess appoint nominees to NLRB.
Both Hatch and Lee joined as amici curiae, or friends of the court, in a brief offered by 42 senators in the case, arguing that these appointments were unconstitutional.
Sen. Mike Lee issued the following statement:
“I am pleased that after careful review a federal court of appeals concluded that President Obama’s so-called ‘recess’ appointments were indeed unconstitutional. When President Obama bypassed the Senate and unilaterally made key appointments at a time the Senate considered itself in session, he ignored the plain text of the Constitution and endangered the checks and balances essential to our nation’s system of government accountability. As the D.C. Circuit rightly concluded, ‘Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.’
“Over the course of the last year, I have spoken out against these unprecedented and unconstitutional actions in numerous settings, including in meetings of the Senate Judiciary Committee, on the floor of the U.S. Senate, in a hearing before the House Committee on Oversight and Government Reform, and in countless interviews in the press. In protest of these unconstitutional appointments, I voted against President Obama’s judicial and executive appointments. Today’s decision represents vindication of the principled stand I have taken against this President’s disregard of our nation’s Constitution.
“The court’s ruling today is a sober reminder of how far detached this administration has become from our constitutional heritage and the rule of law. By failing to follow the Constitution’s specified procedure for appointing executive officials, the President has created chaos and confusion for the business community, which has been left uncertain as to the validity of the many rules and regulations promulgated by officers that were not appointed according to the Constitution’s requirements.”
Sen. Orrin Hatch issued the following statement:
“Today’s ruling reaffirms that the Constitution is above political party or agenda, despite what the Obama Administration seems to think. This wasn’t an activist decision or legislating from the bench. This was a Court holding what the Constitution says – that a President may make a recess appointment only if the vacancy he would fill and the appointment occur during the same intersession recess. With this ruling, the DC Circuit has soundly rejected the Obama Administration’s flimsy interpretation of the law, and will go a long way toward restoring the constitutional separation of powers.”
Friends-of-the-Court Brief: Noel Canning v NLRB (CADC No 12-1115) – Amicus Brief for Sen McConnell et al
The Senators’ letter to Obama December 19, 2011: 12.19.11 Letter to POTUS re NLRB Nominees
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